Judge overturns Utah death sentence case, citing misconduct by Provo police, prosecutors after 1985 killing

The judge has stayed his ruling rejecting the convictions against Douglas Stewart Carter, awaiting a possible appeal by prosecutors.

( Al Hartmann | The Salt Lake Tribune file photo) Douglas Stewart Carter, who has been on Utah's death row since 1985, has his shackles removed so he can take notes at defense table during a 2007 hearing in Provo's 4th District Court.

The conviction and death sentence of a man found guilty in a 1985 Provo killing has been overturned by a judge who ruled there was misconduct by Provo police and prosecutors.

Douglas Stewart Carter’s convictions were vacated by 4th District Court Judge Derek P. Pullan on Wednesday.

In 1985, Carter was convicted in the brutal killing of Eva Olesen, the aunt of the then-Provo police chief, and was sentenced to die. Epifanio and Lucia Tovar testified that Carter bragged about the killing, and demonstrated how he had stabbed Olesen.

Carter appealed his death sentence, and in 1992 was again sentenced to die.

Douglas Stewart Carter

However, after a series of appeals, the Utah Supreme Court found in 2019 that “damning revelations” about the conduct of police and prosecutors could have affected Carter’s conviction and sentencing. Justices sent the case back to 4th District Court, where a hearing took place in November 2021.

Carter argued that his confession was coerced, and that the Tovars were threatened and paid to manufacture testimony against him. Prosecutors failed to disclose evidence that could have impeached the witnesses’ testimony — that police “threatened the Tovars with arrest, deportation and loss of their child” and paid them thousands of dollars before the 1985 trial.

It was further alleged that police coached Epifanio Tovar to testify that Carter said he was going to “rape, break and drive” before the murder — a statement Carter never made.

Epifanio Tovar testified that he lied on the stand when he originally testified he had received only $14 from police, while he actually received thousands of dollars for rent, utilities, food, Christmas presents for his children and more. Carter’s appeal alleged that prosecutor Wayne Watson knew this and did not correct the false testimony during the trial.

Lucia Tovar told a police officer she feared deportation and said that a Provo police officer told her, “As long as you’re working with us, it’s not going to happen.”

“I thought they would put me in jail and take my son away and deport my wife,” Epifanio Tovar said, adding “They had told me they would accuse … me of being an accomplice, and that they would put me in jail.”

According to Epifanio Tovar, police also told him to lie on the stand. At Carter’s 1984 trial, he testified that Carter had said he was going to “rape, break, and drive” before the murder. What he actually said was that he “was going to break into a car and steal from the car.”

When asked why he lied, Epifanio Tovar said he was “threatened” by police and lied “because that’s what they [police] wanted me to say.”

Police testified that the money was paid for “witness protection,” but, the judge ruled, evidence of that is “paper thin.” He also wrote that evidence that “the payments made by police on behalf of the Tovars constituted evidence favorable to Carter.”

The judge also ruled there was evidence that police “threatened the Tovars with arrest, deportation, and separation from each other and their son,” and that “police coached Epifanio to not disclose the financial benefits and to say that Carter said ‘rape, break, and drive.’

“In directing a specific witness to withhold damaging evidence or give false testimony, the police interfered with the truth-seeking function of the criminal justice process,” Pullan ruled. “And the specific instances of coaching call into question the integrity of the police investigators and their investigation generally.”

Pullan stayed his order for five days. If prosecutors do not respond, the stay on his ruling will be lifted; if prosecutors appeal his decision, the stay will remain in effect during that appeal.